Citation Nr: 0701448
Decision Date: 01/18/07 Archive Date: 01/25/07
DOCKET NO. 05-17 293 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
D. M. Casula, Counsel
INTRODUCTION
The veteran had active service from October 1960 to July
1964.
This matter comes before the Board of Veterans' Appeals
(Board) from an October 2004 rating decision of the above
Regional Office (RO) of the Department of Veterans Affairs
(VA) which denied service connection for bilateral hearing
loss and tinnitus. In July 2006, the veteran failed to
report to the RO for a scheduled videoconference hearing with
the Board.
FINDINGS OF FACT
1. The veteran's current bilateral hearing loss does not
meet the VA standards for hearing loss disability.
2. The competent and probative medical evidence of record
preponderates against a finding that the veteran's tinnitus
is due to any incident or event in active service, and
tinnitus as an organic disease of the nervous system is not
shown to have been manifested either in service or within one
year after separation from service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in service. 38
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385
(2006).
2. Tinnitus was not incurred in or aggravated by service,
nor may tinnitus, as an organic disease of the nervous
system, be presumed to have been incurred in or aggravated by
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim, (2) that VA will seek to provide,
and (3) that the claimant is expected to provide; and (4)
must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). The U.S. Court of Appeals for
Veterans Claims has held that VCAA notice should be provided
to a claimant before the initial RO decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if
VCAA notice is provided after the initial decision, such a
timing error can be cured by subsequent readjudication of the
claim, as in a Statement of the Case (SOC) or Supplemental
SOC (SSOC). Mayfield v. Nicholson, No. 02-1077 (Vet. App.
Dec. 21, 2006). Here, VCAA notice pre-dated the initial
rating decision.
In a letter dated in June 2004, the RO informed the veteran
of its duty to assist him in substantiating his claims under
the VCAA, and the effect of this duty upon his claims. The
letters informed the veteran that VA would obtain all
relevant evidence in the custody of a Federal department or
agency, including VA, the service department, Social
Security, and other pertinent agencies. He was advised that
it was his responsibility to send any other medical records
supporting his claim, or to provide a properly executed
release so that VA could request the records for him.
The veteran was also specifically asked to provide "any
evidence in your possession that pertains to your claim".
See 38 C.F.R. § 3.159(b)(1). The Board concludes that these
notifications received by the veteran adequately complied
with the VCAA and subsequent interpretive authority, and that
he has not been prejudiced by the notice and assistance
provided by the RO. In addition, it appears that all
obtainable evidence identified by the veteran relative to his
claim has been obtained and associated with the claims file,
and that neither he nor his representative has identified any
other pertinent evidence, not already of record, which would
need to be obtained for a fair disposition of this appeal.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertinent to his claim under the VCAA.
Therefore, no useful purpose would be served in remanding
this matter for yet more development. Such a remand would
result in unnecessarily imposing additional burdens on VA,
with no additional benefit flowing to the veteran. The Court
of Appeals for Veterans Claims has held that such remands are
to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
In addition to the foregoing analysis, to whatever extent the
recent decision of the Court in Dingess v. Nicholson, 19 Vet.
App. 473 (2006), requires more extensive notice in claims for
compensation, e.g., as to potential downstream issues such as
disability rating and effective date, the Board finds no
prejudice to the veteran in proceeding with the present
decision. Since the claims for service connection are being
denied, any such questions are moot.
II. Factual Background
Service medical records are negative for any complaints or
findings of hearing loss or tinnitus. In a January 1961
document titled Hearing Conservation Data (AF Form 1490), it
was noted that the veteran had no noise exposure and wore no
ear protection. His last audiometric test was in October
1960 and showed right ear pure tone thresholds of -5, -10, -
10, 0, and -10 decibels and left ear puretone thresholds of
0, -5, -10, 0, and -10 decibels at 500, 1000, 2000, 3000 and
4000 Hertz (Hz),
respectively. On his separation examination in May 1964, he
underwent audiometric testing which showed right ear pure
tone thresholds of 10, 10, 0, 0, and -10 decibels and left
ear puretone thresholds of 10, 0, 0, 0, and -5 decibels at
500, 1000, 2000, 3000 and 4000 Hz, respectively.
The veteran's DD Form 214 showed that his MOS (military
occupational specialty) was as an aircraft mechanic during
service.
A January 2004 audiological evaluation at the Santa Rosa VA
Medical Center (VAMC) showed that the veteran reported having
periodic tinnitus in both ears for many years, and having
decreased hearing. He reported a history of noise exposure
while in the Air Force from 1960 to 1964, and asserted that
he was a jet engine mechanic and was on the runways with jets
taking off and landing. He denied noise exposure as a
civilian. He underwent an audiological evaluation and was
found to have asymmetrical hearing loss. In the right ear he
had normal hearing thresholds from 250 to 4000 Hz, sloping to
mild sensorineural hearing loss, and good word recognition
score of 92 percent. In the left ear he had normal hearing
thresholds from 250 to 2000 Hz, mild sensorineural hearing
loss at 3000 Hz, and a precipitously to moderate-severe
hearing loss. He had a good word recognition score of 88
percent.
Received from the veteran in March 2004 was his informal
claim for service connection for bilateral hearing loss and
for tinnitus. He claimed that he was stationed at Mountain
Home AFB for 2.5 years, from 1960 to 1963, and he was an
aircraft mechanic who worked o the flight light. He claimed
he was exposed to jet noise from 8 to 12 hours daily, and
that ear protection was provided by ear plugs only. He
reported that in 1963 he was transferred to South Vietnam and
worked a flight line where he was exposed to jet noise for 10
months. He claimed that when he returned home from work at
Mountain Home AFB and in Vietnam, he had ringing in his ears
for several hours. He also claimed that in Vietnam he had to
go to a pistol firing range every three months and was not
provided ear protection, and that they had artillery guns
firing for hours at a time within one or two miles from his
quarters.
Received from the veteran in April 2004 was his formal claim
for service connection for bilateral hearing loss and
tinnitus (on VA Form 21-526), in which he indicated that his
tinnitus began in June 2003 and his loss of hearing began in
March 1961. He indicated that he was treated for both
tinnitus and loss of hearing in January 2004 at the Santa
Rosa VAMC.
On VA examination in September 2004, the veteran complained
of hearing loss and tinnitus. With regard to military noise
exposure, he reported that he worked on jet aircraft and wore
rubberized ear plugs as ear protection. With regard to
occupational noise exposure, he reported he continued in
aviation as an aircraft mechanic and then later as a licensed
pilot. He said he later lost his ability to be a pilot due
to a back injury, and then stayed in maintenance for 10
years, until he retired. With regard to recreational noise
exposure, the veteran reported that prior to service, on a
limited basis, he used to hunt pheasant and ducks with a shot
gun. It was noted that the veteran had tinnitus in the left
ear, that was periodic, for at least 50 percent of the day.
An audiological evaluation revealed pure tone thresholds for
the right ear, in decibels, at 500, 1000, 2000, 3000, and
4000 Hz as follows: 10, 10, 10, 15, and 20, and pure tone
thresholds for the left ear as follows, 10, 15, 15, 25, and
25. Speech recognition scores using the Maryland CNC Test
were 96 percent for the right ear and the left ear. He was
found to have hearing within normal limits in the right ear,
and in the left ear, hearing was within normal limits through
2000, and then hearing sloped to a mild to moderate high
frequency sensorineural hearing loss. The examiner noted
that the claims file showed normal hearing thresholds at
separation, and concluded that hearing loss and tinnitus were
not due to military service. The examiner also noted that
the complaints of tinnitus began "just last year" and could
be related to excessive cerumen.
III. Analysis
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a). Service
connection may also be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. §
3.303(d).
The law also provides that, even where there is no record of
organic disease of the nervous system (e.g., sensorineural
hearing loss or tinnitus) in service, its incurrence
coincident with service will be presumed if it was manifest
to a compensable degree within one year after service. 38
U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307,
3.309(a).
The U.S. Court of Appeals for Veterans Claims (Court) has
held that, in order to prevail on the issue of service
connection, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of incurrence or aggravation of a disease or injury
in service; and (3) medical evidence of a nexus between the
claimed in-service injury or disease and the current
disability. Hickson v. West, 12 Vet. App. 247, 252 (1999).
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies at
500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater;
or when speech recognition scores using the Maryland CNC Test
are less than 94 percent. 38 C.F.R. § 3.385. Even if
disabling hearing loss is not demonstrated at separation, a
veteran may establish service connection for a current
hearing disability by submitting evidence that a current
disability is causally related to service. See Hensley v.
Brown, 5 Vet. App. 155, 160 (1993).
The veteran contends that he was exposed to excessive noise
in service, including jet engines, and that the ear
protection (rubber ear plugs) provided was inadequate. He
claims that he has bilateral hearing loss and tinnitus as a
result of excessive noise exposure in service.
The Board initially acknowledges that the lack of any
evidence showing the veteran exhibited bilateral hearing loss
or tinnitus during service is not fatal to his claim. The
laws and regulations do not strictly require in-service
complaints of, or treatment for, hearing loss in order to
establish service connection. See Ledford v. Derwinski, 3
Vet. App. 87, 89 (1992). Instead, the Court has held where
there is no evidence of the veteran's claimed hearing
disability until many years after separation from service,
"[i]f evidence should sufficiently demonstrate a medical
relationship between the veteran's in-service exposure to
loud noise and his current disability, it would follow that
the veteran incurred an injury in service . . . ." Hensley,
supra, 5 Vet. App. at 160 (quoting Godfrey v. Derwinski, 2
Vet. App. 352, 356 (1992)). Therefore, the critical question
is whether the veteran has current hearing loss disability
and tinnitus that are causally related to service.
With regard to hearing loss, the Board notes that the
threshold requirement for service connection to be granted is
competent medical evidence of the current existence of the
claimed disorder. Degmetich v. Brown, 104 F.3d 1328 (1997);
Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, in
this case, the competent medical evidence of record,
including VA audiological testing, showed no current hearing
loss disability in either ear pursuant to 38 C.F.R. § 3.385;
thus there may be no service connection for the claimed
condition. Until hearing loss disability is shown, pursuant
to that regulation, the fact of whether the veteran may have
been exposed to excessive noise in service is not relevant.
Thus, as the preponderance of the evidence is against the
claim, the benefit-of-the-doubt rule does not apply, and the
claim for service connection for bilateral hearing loss must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet.App. 49 (1990).
With regard to tinnitus, the Board notes that based upon the
veteran's contentions and the findings made on the September
2004 VA examination, it appears that he has tinnitus, at
least in his left ear. However, although it appears that the
veteran was exposed to excessive noise in service, as a
result of his work as an aircraft mechanic, the record also
reflects the veteran also had post-service noise exposure as
an aircraft mechanic and he, by his own report, did not
experience any tinnitus until at least 2003. What is
necessary in order to grant service connection for tinnitus
is competent medical evidence linking the current hearing
loss and tinnitus to service, as opposed to the intercurrent,
post-service occupational exposure to noise. The only
competent medical evidence of record addressing such a link
is the September 2004 VA examiner's opinion, which is to the
effect that the veteran's tinnitus is not due to service, and
that his complaints of tinnitus began just last year and may
be related to his excessive cerumen. There is no competent
medical evidence to the contrary. Thus, service connection
for tinnitus is not warranted, because there is no medical
evidence in the claims file specifically relating the
veteran's tinnitus to noise exposure in service, or showing
chronicity or continuity from 1964 to the present, as opposed
to his documented post-service noise exposure.
Moreover, service connection for tinnitus on a presumptive
basis is not available in this case, because, as noted, there
is no indication in the evidence of record, nor has the
veteran alleged, that he manifested an organic disease of the
nervous system, shown to include tinnitus, to a compensable
degree within his first post-service year. See 38 U.S.C.A. §
1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a).
The Board also acknowledges, and has no reason to doubt, the
veteran's assertions that he was exposed to excessive noise
in service from aircraft, and that he believes this exposure
caused his hearing loss and tinnitus. However, while the
veteran is capable of providing evidence of symptomatology, a
layperson is generally not capable of opining on matters
requiring medical knowledge, such as medical etiology and
causation of disability. See Robinette v. Brown, 8 Vet. App.
69, 74 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1992).
In summary, and the Board finds that the preponderance of the
competent and probative evidence is against the veteran's
claim for service connection for tinnitus. As the
preponderance of the evidence is against the claim, the
benefit-of-the-doubt rule does not apply, and the claim for
service connection for tinnitus must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert, supra.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
_________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs